Opinion
E065271
05-02-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON LOERA TORRES, Defendant and Appellant.
The Law Offices of Robert Little, and Robert Little for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1400420) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed as modified. The Law Offices of Robert Little, and Robert Little for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Ramon Loera Torres guilty of one count of assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2); count 2), four counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3-6), three counts of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); counts 7-9), and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 11). The jury also found true that, in the commission of counts 2 through 9, defendant personally used a firearm (Pen. Code, §§ 12022.5, subds. (a) & (d) (counts 2-9), 12022.53, subd. (b) (count 2)).
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty on count 1, attempted murder of a peace officer (§§ 664/187, subd. (a)). In addition, the People dismissed count 10, escape (§ 4532, subd. (b)(1)).
As a result, defendant was sentenced to a total term of 26 years four months in state prison with 786 days' credit for time served as follows: (1) the upper term of nine years on count 2, plus 10 years for the section 12022.53, subdivision (b) firearm use enhancement; (2) a consecutive term of two years on count 3, plus one year four months on the firearm enhancement; (3) a consecutive term of two years on count 4, plus one year four months on the firearm enhancement; (4) a concurrent term of six years on count 5, plus a concurrent term of four years on the firearm enhancement; (5) a concurrent term of six years on count 6, plus a concurrent term of four years on the firearm enhancement; and (6) a consecutive term of eight months on count 11. The court also imposed sentences on counts 7, 8, and 9, along with the firearm enhancements attached to those counts, but stayed those terms pursuant to section 654.
On appeal, defendant contends that the trial court erred in imposing consecutive terms on counts 3 and 4 because he committed a single act during a single period of aberrant behavior. He also argues that the trial court abused its discretion in imposing the upper term on count 2. For the reasons explained below, we affirm the judgment as modified.
II
FACTUAL BACKGROUND
At 3:30 p.m. on March 9, 2014, defendant went to the home of the victim J.R. on Ceres Avenue in Fontana, and entered the home without knocking. Defendant was angry and drunk. He started yelling that he was looking for C.R. to collect rent for his girlfriend, who was C.R.'s landlord. J.R. told defendant to leave or she would call the police. Defendant had called C.R. earlier in the day, but she hung up on him because he was being rude, calling her names and demanding the rent. C.R. had given the rent money to J.R. but instructed her to only give it to the girlfriend, not to defendant.
Hearing an argument, C.R. came out from the back of the house. C.R. and defendant went outside and argued about the rent, yelling and swearing at each other. While they were arguing, J.R., C.R.'s sons (S. and P. (Junior)), and J.R.'s son-in-law and daughter also went outside. S., J.R., and J.R.'s son-in-law and daughter told defendant to leave. Defendant and C.R., however, continued arguing, swearing and calling each other names. Defendant eventually got in his truck and began to leave, but stopped after C.R. hit the hood of his truck with her fists after defendant insulted her mother. Defendant retrieved a loaded handgun from his truck, and began waving it around, pointing it at everyone, threatening to kill anyone who called the police. Defendant then grabbed Junior by the throat, leaving red marks on his neck, slammed him up against a truck, and held the gun to Junior's temple, while threatening to kill him if he called the police. Eventually, defendant jumped in his truck and left the residence.
The police were called and responded to the scene. The police attempted to locate defendant in the area but were unsuccessful. A police officer, however, spoke with defendant on the phone. Defendant was hesitant to talk but said that he went to the home to collect money on behalf of his girlfriend and there was an argument. Defendant referred to Junior and S. as "gangsters" and said he was afraid they were going to attack him.
At trial, R. testified that her sons Junior and S. were not gang members and that they had short, shaved hair because they were in the "ROTC" program at school.
The following day, a Fontana police officer was assigned to assist with arresting defendant at an address on Merrill Avenue in Fontana. The officer was in uniform and driving a marked police vehicle. He staked out the back of the residence while other officers went to the front of the residence to apprehend defendant. While standing on his toes to look over a fence, the officer saw defendant set a beer on top of a brick wall and then place his hands on top of the wall as if he were about to jump over. At that point, the officer yelled at defendant to put his hands up and warned that he would be tasered if he did not show his hands. Defendant dropped back down and stepped back. Defendant then pointed a semiautomatic handgun at the officer's face. The officer immediately dropped down on the other side of the wall, and yelled to the other officers that there was a gun. The officer drew his own gun and yelled at defendant to get on the ground. Defendant complied and other officers took him into custody.
The officer acknowledged that the gun was raised for a " 'millisecond' " before the officer dropped down behind the wall.
Defendant was interviewed by detectives at the police station. Defendant admitted the events at the residence but claimed he acted in self-defense and never pointed the gun at anyone. He also admitted that he planned to shoot at the officer in the hope that the police would then kill him. Defendant acknowledged that he had called the victims to convince them to change their story. After the interview, defendant escaped from the police station but was located four or five hours later at a motel in Fontana.
A videotape of the interview was played for the jury.
Meanwhile, another Fontana police officer executed a search warrant on defendant's residence in Fontana. At defendant's residence, officers found 618.33 grams of methamphetamine, as well as "pay and owe" sheets, and several boxes of ammunition.
III
DISCUSSION
In pertinent part, defendant was convicted of assault on the officer with a semiautomatic firearm (count 2) and assault on C.R. (count 3), J.R. (count 4), S. (count 5), and Junior (count 6) with a semiautomatic firearm.
At the sentencing hearing, the trial court indicated it had read and considered the probation officer's report. The probation officer recommended defendant be sentenced to a term of 33 years in prison and listed the following six circumstances in aggravation: (1) the crime involved a threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was particularly vulnerable (rule 4.421(a)(3)); (3) the manner in which the crime was carried out indicates planning, sophistication or professionalism (rule 4.421(a)(8)); (4) defendant engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); (5) defendant's prior convictions as an adult are of increasing seriousness (rule 4.421(b)(2)); and (6) defendant's prior performance on probation was unsatisfactory (rule 4.421(b)(5)). The probation officer listed only one factor in mitigation—defendant's prior performance on court probation was satisfactory (rule 4.423(b)(6)). The probation officer also listed the following criteria supporting consecutive sentences: (1) the crimes and their objectives were predominantly independent of each other (rule 4.425(a)(1)); (2) the crimes involved separate acts of violence or threats of violence (rule 4.425(a)(2)); and (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior (rule 4.425(a)(3)).
All further rule references are to the California Rules of Court.
Following argument by counsel, the trial court sentenced defendant to a total term of 26 years four months in state prison. As relevant here, the trial court imposed the upper term of nine years on count 2, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement in count 2 and the middle term of two years on counts 3 and 4, plus one year four months for the section 12022.5, subdivisions (a) and (d) firearm enhancements attached to those counts. The court also imposed concurrent middle term sentences of six years on counts 5 and 6, plus the middle term of four years for the section 12022.5, subdivisions (a) and (d) firearm enhancement attached to those counts. Defendant's trial counsel objected to the court's imposition of the aggravated term and consecutive sentences.
A. Consecutive Sentences
Defendant asserts that the trial court erred in sentencing him to consecutive terms on counts 3 (assault on C.R.) and 4 (assault on J.R.) because both counts relate to defendant "pointing a gun at a number of what he believed were 'gangsters' approaching him as he retreated to his truck." Defendant believes these offenses were committed simultaneously and involved a single period of behavior.
"[A] trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20, called into question on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1065 as stated in People v. Thomas (2012) 53 Cal.4th 1276, 1288; see People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)
When a defendant is convicted of multiple offenses, the trial court must state whether the sentences imposed are to run consecutive or concurrently. (See § 669.) To assist the trial court in the exercise of its discretion, rule 4.425 sets out "[c]riteria affecting the decision to impose consecutive rather than concurrent sentences," which include that the "crimes and their objectives were predominantly independent of each other," they "involved separate acts of violence or threats of violence" and the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a)(1)-(3).) But these criteria are not exclusive. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1060 (Caesar), disapproved on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18.) Rule 4.408(a) states: " 'The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.' " (See Caesar, at p. 1060.)
The court may also consider circumstances in aggravation or mitigation when making the determination whether to impose consecutive or concurrent terms, but may not use a fact used to impose an upper term, a fact used to otherwise enhance a sentence, or a fact that constitutes an element of the underlying offense to impose consecutive terms. (See rule 4.425(b).) --------
In imposing sentencing on count 3 (assault on C.R.) consecutive to the principal term for the assault on the officer in count 2, the court explained: "in regards to what happened at the other locations prior to the assault with a firearm upon the peace officer, I think that there is aggravation in regards to some of the victims and less, obviously, serious as to others, in my opinion, but he held that loaded gun to the juvenile—that was very aggravated in terms of his conduct—directed it towards that juvenile and threatened to kill him. So in that regard I am going to sentence the defendant to one-third the midterm of 6 years, which is 2 years, consecutively, based on Rule 4.425 that the crime was predominately independent of Count 2, the crime did involve separate acts of violence or threats of violence and the crime was committed at a different time and/or separate place."
In imposing a consecutive term on count 4 (assault on J.R.), the court explained: "Also, I think that based on the fact that . . . most of his violent conduct was directed to the other victim, the female victim, that he had a verbal altercation with that led to . . . the situation at hand, so I think that . . . she was a predominant victim as well. So for Count 4, based on the fact, again, that it did involve a separate act of violence or threat of violence and I feel that the objective was predominately independent of each other from the other victim, I am going to impose one-third the midterm of 6 years, which is 2 years, consecutively; plus the [term on the firearm enhancement], consecutive to Counts 2 and 3."
In imposing counts 5 (assault on S.) and 6 (assault on Junior) concurrently, the court explained: "Again, in Counts 5 and 6, I realize that in regards to the fact that there were other people that were there at the time, the defendant was obviously pointing a loaded firearm at them, but they weren't as much involved in the altercation with the defendant at the time and I feel based on the fact that those crimes were committed so closely in time and place as to indicate a single period of aberrant behavior towards those two victims, I am going to run [counts 5 and 6] concurrently."
Based on the trial court's comments, it appears that the court intended to impose consecutive terms for the assaults on Junior (the juvenile victim) and C.R. (the primary individual that defendant was arguing with on the night of the assaults), and that it intended to impose concurrent terms for the assaults on the other two victims, J.R. and S. It appears the court mistakenly believed Junior was the victim of count 3 and C.R. was the victim in count 4. Junior and C.R. appear to be the victims listed in counts 3 and 4, respectively, of the initial complaint. In the amended information, however, C.R. was the victim in count 3 (not count 4) and Junior was the victim in count 6 (not count 3), while J.R. and S. were the victims in counts 4 and 5, respectively. A thorough analysis of the record discloses that the trial court properly exercised its discretion in imposing consecutive terms for the assaults on C.R. (count 3) and Junior (count 6).
At the sentencing hearing, the trial court recognized that each of these counts involved different victims. Defendant argues the court erred by imposing consecutive terms on counts 3 and 4 because, although they involved different victims, they were not " 'separate acts of violence.' "
In People v. Calhoun (2007) 40 Cal.4th 398 (Calhoun), our Supreme Court recently addressed an issue relevant to our analysis here, concluding that the presence of separate victims named in separate counts will justify an upper term sentence, and also stating in the course of its analysis that the same facts would, in the alternative, be sufficient to justify a consecutive sentence.
In Calhoun, the defendant had been convicted of two counts of vehicular manslaughter and two counts of reckless driving after killing two people and severely injuring two others. (Calhoun, supra, 40 Cal.4th at p. 401.) The trial court imposed the upper term sentence. As an aggravating factor, the trial court relied on the fact that consecutive sentences could have been imposed but were not. (Id. at p. 405.) In the same discussion, the trial court also noted that there were " 'separate victims of the crime.' " (Ibid.) As Calhoun pointed out, the trial court was not clear as to (1) whether it was identifying the presence of separate victims as the fact that would have justified consecutive sentences or (2) whether it was identifying the presence of separate victims as a separate aggravating factor. (Ibid.)
Assuming for the sake of its discussion that the trial court had intended the presence of separate victims as a separate aggravating factor, Calhoun discussed whether a trial court may use "the fact of multiple victims" as a fact in aggravation "when each count of which the defendant was convicted names only one victim." (Calhoun, supra, 40 Cal.4th at p. 406.) Our Supreme Court explained that the "[defendant's] single act of violence caused either the death or serious injury of four people. The gravity of and his culpability for this offense is increased by the number of those he harmed. ' "A defendant who commits an act of violence . . . by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person." ' [Citation.] [Defendant] is therefore properly subject to increased punishment for each . . . count." (Id. at p. 408.)
In addition, presumably because it was unclear whether the trial court had intended to impose an upper term based solely on the fact that consecutive sentences could have been imposed but were not, Calhoun also surveyed the case law on the issue of whether consecutive sentences could be properly imposed based on the presence of separate victims in separate counts. (Calhoun, supra, 40 Cal.4th at p. 407, fn. 6.)
Concluding its analysis, Calhoun stated that "[t]here is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence." (Calhoun, supra, 40 Cal.4th at p. 408, italics added.) The "naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences." (Caesar, supra, 167 Cal.App.4th at pp. 1060-1061.)
In the present matter, the naming of separate victims in separate counts by itself justifies the trial court's decision to impose consecutive sentences. "Only one criterion or factor in aggravation is necessary to support a consecutive sentence. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 552.) But the offenses involved more than just multiple victims, they also involved separate threats of violence at separate times. Defendant and C.R. argued before C.R. hit defendant's truck with her fists as defendant began to leave. Defendant then grabbed his gun and pointed it at C.R. and the others, threatening to kill anyone who called the police. Defendant then grabbed Junior by the throat and pointed the gun directly at his head. And, the following day, when the officer went to arrest defendant at a residence, defendant pointed a gun directly at the officer's face. The assault on the officer occurred at a different time and location than the assaults on the other four victims, and involved a separate act of violence. While the assaults on Junior and C.R. occurred close in time and at the same location, defendant committed an entirely different act of violence against Junior when he held the gun against Junior's head while choking him after he had already assaulted C.R. by pointing the gun at her. Defendant does not provide authority for the proposition that the trial court's discretion in this case is limited to finding separate threats of violence as to the victims. The criteria requires only that the crimes involve separate acts or threats of violence in general, which was present in this case as to multiple individuals.
In short, defendant's claim fails on grounds he cannot show the trial court's decision was arbitrary or irrational, or that its sentence otherwise plainly exceeded the bounds of reason. On this record, the trial court did not abuse its broad discretion in sentencing defendant consecutively for the assaults on the officer, C.R., and Junior, which involved multiple victims named in separate counts, separate threats of violence, and separate times.
B. Upper Term on Count 2
Defendant also argues the trial court erred in imposing the upper term on count 2 (assault on officer) because the trial court impermissibly found the offense involved a threat of great bodily injury as an aggravating factor. Specifically, he asserts that the offense he committed was not distinctively worse than any other assault with a firearm offense. He further maintains the trial court erred in "double counting" the use of a weapon in imposing the upper term because use of a gun is an element of the offense, as well as, the firearm enhancement.
The trial court's sentencing decision is reviewed for an abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) " 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors.' " (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) This discretion also includes the authority to minimize or even disregard allegedly mitigating factors. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317.)
When a statute specifies three possible terms, the sentencing court shall impose the middle term, unless there are circumstances in aggravation or mitigation of the crime that justify the imposition of the lower or upper term. (§ 1170, subd. (b).) Any fact that is an element of the crime or the basis for a sentence enhancement cannot be used to justify imposition of the upper term. (§ 1170, subd. (b); rule 4.420(c) & (d).) The court must state its reasons for imposing the upper term (rule 4.420(e)), and those reasons must be supported by substantial evidence on appeal (People v. Searle (1989) 213 Cal.App.3d 1091, 1096). The aggravating circumstances must be "above and beyond the essential constituents of [the] crime which increases its guilt or enormity or adds to its injurious consequences." (People v. Davenport (1985) 41 Cal.3d 247, 289, superseded by statute on another ground as stated in People v. Crittenden (1994) 9 Cal.4th 83, 140, fn. 14; see People v. Garcia (1995) 32 Cal.App.4th 1756, 1776 [aggravating factor must exceed minimum requirements necessary to establish the crime].) " 'Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement [or improper use of an aggravating factor] does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' " (People v. Osband (1996) 13 Cal.4th 622, 728.) A single factor in aggravation is sufficient to justify the imposition of the upper term. (Id. at p. 730; People v. Cruz (1995) 38 Cal.App.4th 427, 433.)
In imposing the upper term on count 2, the trial court explained: "Count 2 will be the principal term. I'll indicate in review of circumstances in aggravation compared to circumstances in mitigation pursuant to Rules 4.421 and 4.423, based on the fact that the crime involved a threat of great bodily injury and/or death to the law enforcement officer, that in my opinion the victim was particularly vulnerable based on the fact that he was unaware that the weapon was pointed directly at him until he was able to look over the wall, and based on the fact that it does appear that the defendant does have a prior record . . . he has a previous conviction for an aggravated unlawful use of a weapon back in 2005 in which he absconded from that jurisdiction and they had to issue a warrant for his arrest, and then he has, obviously, a weapon—I believe it was a loaded weapon—at the time of the commission of these offenses as well. So I realize the fact that he's alleged to have been under the influence of alcohol and/or drugs, but that does not lessen the severity of the crime and lessen reasons in aggravation."
Here, even if the trial court inappropriately relied on the factors of the weapon use and threat of great bodily injury, based on dual use limitations, the court also relied on other circumstances in aggravation listed in rule 4.421 to support its reasoning in imposing the upper term. The court relied on evidence that the victim was particularly vulnerable (rule 4.421(a)(3)), that defendant had a prior criminal record of increasing seriousness (rule 4.421(b)(2)), and that defendant had engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)). In addition, the court could have also properly relied on the manner in which the crime was carried out indicated planning, sophistication or professionalism (rule 4.421(a)(8)) and defendant's prior unsatisfactory performance on probation (rule 4.421(b)(5)) as factors in imposing the upper term. These factors were an ample basis for imposing the upper term and are supported by substantial evidence.
In sum, the trial court could properly rely on five aggravating factors in support of the upper term. The trial court therefore did not abuse its discretion in imposing the upper term on count 2 (assault on officer). (Sandoval, supra, 41 Cal.4th at p. 847.)
C. Modification of Abstract of Judgment and Minute Order
In the amended information, C.R. was listed as the victim in count 3 (not count 4) and Junior was listed as the victim in count 6 (not count 3), while J.R. and S. were listed as the victims in counts 4 and 5, respectively. As pointed out by the People, the trial court's statements at the sentencing hearing clearly indicate that the court intended to impose consecutive sentences on the assaults committed against C.R. and Junior. In other words, the trial court intended to impose consecutive sentences on counts 3 and 6 and concurrent sentences on counts 4 and 5.
Accordingly, because the trial court was mistaken as to which counts involved each of these victims, we will order the abstract of judgment and the clerk's minute order of the January 22, 2016 sentencing hearing corrected to properly reflect the trial court's intended sentence of a consecutive term on count 6 and a concurrent term on count 4.
IV
DISPOSITION
In accordance with this opinion, the trial court is directed to correct the clerk's minute order of the January 22, 2016 sentencing hearing and the abstract of judgment to reflect a consecutive sentence of two years on count 6, plus a consecutive term of one year four months for the section 12022.5 firearm enhancement attached to that count and a concurrent term of six years on count 4, plus a concurrent term of four years for the section 12022.5 firearm enhancement attached to that count.
The trial court is further directed to send copies of the amended abstract of judgment and corrected minute order to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.